After Janus, public-sector labor law will need restructuring. Instead of trying to preserve as much as possible of a broken system, why not start experimenting with alternatives? Ever since the 1950s, organized labor has struggled to defend and tweak the system of “exclusive representation” established in the National Labor Relations Act of 1935. We believe it is time to step back, change course and scrap exclusive representation in favor of a system that would let workers join their union of choice. Such a move could also solve the free-rider problem posed by Janus, which held only that workers can’t be required to fund a particular union.

Under exclusive representation, jobs are grouped into various bargaining units. If a majority of workers in a particular unit want a union, then that union becomes the “exclusive” bargaining representative of all workers in the unit. Should some of the workers become dissatisfied and wish to join another union, they must file for a decertification election, in which “no union” is one ballot option. In the culture of American unionism, this move is widely regarded as scabbing, and proponents of an alternative union risk ostracism.

When exclusive representation was first proposed back in the 1930s, the ACLU, the NAACP and labor radicals condemned it. They feared it would make unions more unresponsive, exclusionary and conservative, and they were right. Exclusive representation has allowed union officials to sign concessionary contracts with little fear of competition from more militant unions. Majority-white unions can ignore the interests of workers of color, and majority-male unions those of women workers. (This exclusionary tendency was subsequently limited by law, but only where union discrimination could be proven—a difficult proposition now that overtly racist and sexist statements are infrequent.) Exclusive representation also allows lazy union officials to sit back and collect their salaries without doing much for workers. Union democracy legislation, enacted in 1959 over strenuous opposition from organized labor, ameliorated the problems of unresponsiveness and conservatism, but the law left enough loopholes that the overwhelming majority of unions continue to operate as one-party bureaucracies.

Exclusive representation also opened the door for the anti-labor “right-to-work” movement, which brought us Janus. Like the early 20th-century labor movement, which conducted a decades-long struggle to win the Norris-LaGuardia Anti-Injunction Act of 1932 and the National Labor Relations Act (NLRA) of 1935, right-to-work leaders plotted an ambitious strategy centered on a coherent vision of workers’ rights. Instead of taking on the entire system of exclusive representation, they targeted the power of unions to require dues payments. Beginning in the 1940s, anti-labor activists charged—sometimes with reason—that “labor bosses” were forcing workers to pay dues even to unions that engaged in corruption, promoted causes opposed by their members (ranging from Stalinism to white supremacy) or made sweetheart deals with the boss.

Also like the old labor movement, these anti-labor forces grounded their case in the Constitution. Workers, they claimed, enjoyed a First Amendment right to withhold financial support from unions they opposed. State by state, they have been eliminating mandatory dues payments in both the private and public sectors.

Meanwhile, organized labor today clings to the system of exclusive representation. Our most recent reform effort, the Employee Free Choice Act of 2007–2009 (EFCA), would have tweaked the procedure for certifying an exclusive representative, replacing elections with a “card check” system. Primed by the decades-long right-to-work campaign, EFCA’s opponents pounced and successfully presented themselves as the true defenders of workers’ rights. “Labor bosses,” they charged, were taking away the all-American right to “secret-ballot elections.” In both the right-to-work and EFCA struggles, anti-labor conservatives scored victories by seizing the moral high ground of labor freedom.

Exclusive representation also opens the door to damaging restrictions on labor rights. Courts can make a principled argument that, because government confers the special privilege of exclusive representation on unions, it can impose special constraints as well. For example, other organizations like worker centers enjoy the First Amendment right to stage secondary boycotts, a way to hold companies accountable for their subcontractors and supply chains, as in the Coalition of Immokalee Workers’ successful Taco Bell boycott. But courts have upheld statutes prohibiting unions from doing the same. Of course, today’s ideologically driven Supreme Court doesn’t need a principled reason to attack unions, but even liberal, generally pro-labor judges have signed onto opinions restricting labor’s free speech rights.

What’s more, exclusive representation is dated. Designed to fit the immobile facilities and monolithic corporations that were at the heart of Fordist mass production, the system makes little sense in today’s world of fissured workplaces and flexible production. Workers who go through the arduous process of establishing an exclusive representative in their bargaining unit may suddenly find that their work has been contracted out, that they have been transferred outside the unit, that the unit has been moved overseas, that it has ceased to exist, or that the company has been sold to another employer. Without a system of exclusive representation, such workers could simply commence members-only bargaining.

Notwithstanding all this, many good union people passionately defend exclusive representation (see “After Janus, Should Unions Abandon Exclusive Representation?”). They worry that, without exclusive representation, employers will divide and conquer workers. But systems of union competition elsewhere contain safeguards against divide-and-conquer tactics. In France and Italy, for example, employers are required to bargain over wages at the national level with the most representative union in the industry, while other unions co-exist and compete with that union, and can even displace it if workers shift their allegiances. As with any legislation, the devil is in the details. Tennessee, for example, provides for competition among teachers’ unions, but the system overall denies the right to bargain collectively and—as expected from a red state—otherwise disadvantages unions.

Defenders also contend that, without exclusive representation, unions will succumb to free riding by nonmembers—but the free-rider problem can be solved without forcing workers to finance the union that owns their bargaining unit. Law professor and former union organizer Brishen Rogers has, for example, proposed requiring a standard representation fee but allowing workers to choose which union receives it. Such a law would correct one of the flaws in the Tennessee system, namely that sweetheart unions undercut real unions by charging lower dues.

Some defenders caution that a system of union competition will open the door to employer-dominated unions. It should go without saying, however, that any labor law worth supporting will incorporate or improve upon the NLRA’s ban on company unions.

Finally, some people figure that because anti-labor conservatives want to terminate exclusive representation (see “How Corporations Plans to Use Janus to Turn Workers Against Their Own Unions”), it must be a good thing. We think that puts too much trust in the strategic judgment of conservatives. It was, after all, anti-labor conservatives who forced the union democracy reforms of 1959 which, to their dismay, enabled progressive rank-and-file caucuses to push unions toward more militant and inclusive policies.

Abolishing exclusive representation could, depending on the details, help to shape and sustain the kind of unions American workers need: democratically controlled, inclusive across lines of race and gender, and effective at countering corporate power. Imagine what having multiple unions within a workplace could look like. Workers could put immediate and effective pressure on union officials by shifting their dues payments to competing unions. Union officials would have to think twice before endorsing, say, Wall Street’s nominee for president over the strongest pro-worker presidential candidate since the New Deal.

Instead of having to establish majority support before bargaining, workers could form minority unions, begin bargaining, and win over their co-workers by demonstrating the benefits of unionism in practice. Racial and gender minorities could form unions separately, if necessary, too. Courts could no longer plead the special privilege of exclusive representation as a justification for upholding special restrictions on labor’s First Amendment rights.

Yes, abolishing exclusive representation carries risks. But how much do we have left to lose? It’s time to admit that labor’s situation today more closely resembles that of the early 20th century than of the heady years following the NLRA. Our labor law system is beyond tweaking. We need the kind of bold vision that can propel a long-term struggle for fundamental rights. Freed from the albatross of exclusive representation, organized labor could reclaim the moral high ground in the struggle for labor freedom.

James Gray Pope teaches at Rutgers Law School and serves on the executive council of the Rutgers Council of AAUP/AFT Chapters.

Ed Bruno is a longtime union organizer with the United Electrical Workers and National Nurses United.

Peter Kellman is a longtime labor activist and a member of UAW Local 1981-National Writers Union.

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